AFS

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- E Exemption No. 10984

UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

OPERATION MIGRATION Regulatory Docket No. FAA

- 20 13

- 1075

for an exemption from § § 61.113(a), 91.319(e), and 91.327(a) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated December 17, 2013

, Mr. Charles R. Barnett, III, Counsel for Operation Migration, Inc., (Operation Migration), 800 Waukegan Road, Suite 200

, Glenview, IL 60025 petitioned the Federal Aviation Admi nistration (FAA) on behalf of Operation Migration for an exempt ion from §§ 61.113(a), 91.319(e) , and 91.327(a) of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would permit Operation Migration to us e persons holding a private pilot certificate to operate weight

- shift

- control aircraft certificated under § 21.191 ( i) or § 21.190 for compensation or hire to facilitate the migration of endangered whooping cranes.

The petitioner requests relief from the following regulation s :

Section 61.113(a) prescribe s, in pertinent part, that e xcept as provided in paragraphs (b) through (h) of this section, no person who holds a private pilot certificate may act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may that person, for compensation or hire, act as pilot in command of an aircraft.

Section 91.319(e) prescribes, in pertinent part, that no person may operate an aircraft that is issued an experimental certificate under § 21.19 1(i) of this chapter for compensation or hire, except a person may operate an aircraft issued an experimental certificate under § 21.191(i)(1) for compensation or hire to t ow a glider that is a light

- sport aircraft or unpowered ultralight vehicle in
accord ance with § 91.309; or to conduct flight training in an aircraft which that person provides prior to January 31, 2010.2

Section 91.327(a) prescribes, in pertinent part, that no person may operate an aircraft that has a special airworthiness certificate in the light

- sport category for compensation or hire except to

t ow a glider or unpowered ultralight vehicle in accordance with § 91.309; or c onduct flight training.

The petitioner supports its request with the following information:
The petitioner states th at the reasons for granting its request would be in the public interest relate to the history of the w hooping c rane, which dates back to the 1940’s when only fifteen

w hooping cranes existed in the world. They migrated from northern Canada to Texas where

t hey were threatened by hurricanes, human encroachment, chemical spills or avian diseases. In order to safeguard the species from extinction a second insurance flock was needed. However, w hooping c ranes learn to migrate by following the parent generation.
U nfortunately, all of the birds that used the eastern flyway were extirpated from that area by the late 1800’s so there were no parents to teach them the route.

Beginning in 1993, Operation Migration developed the only known method of reintroducing
enda ngered birds in a migratory situation. Th e petitioner notes that this is accomplished by imprinting the birds on handler/pilots and conditioning them to follow a specific aircraft.

In 1998, the International Whooping Crane Recovery Team asked Operation M igration to spearhead an attempt to establish a second flock that migrated from Wisconsin to Florida. An association of nine Federal, State and private agencies known as the Whooping Crane Eastern Partnership (WCEP) formed in 1999. Beginning in 2001

, a ne w generation of

w hooping cranes was hatched each year at the U

. S

. G eological S urvey (USGS) Patuxent Wildlife Research Center in Maryland. In June

, the whooping cranes continued their conditioning once transferred by private aircraft to Wisconsin. In the fall, they were led along a preselected route to Florida that covered 1280 miles and seven states. After a period of monitoring during the winter, t he birds made the return trip back to Wisconsin on their own.
There are now 100 w hooping c ranes in the eas tern flyway. So far, they have produced three offspring that have learned this same route from their parents. These three are the first wild hatched, migratory w hooping c ranes in this area since the last reported nest in 1878.

The image of a modern airc raft leading an ancient species has generated worldwide media
attention

, which provides an unprecedented education opportunity. Through Journey North, this project reaches 1.6 million students each year with online study plans. It has been
featured on su ch media outlets as 60 Minutes, 20/20

, and National Geographic and is the subject of at least nine books. Through its live web camera and social media, Operation Migration reach es hundreds of thousands of followers.

The petitioner notes that a lthough it receives no funding assistance from the U. S. Fish and
Wildlife Service, it ha s completed critical tasks to contribute both to the recovery efforts of3

the species under the Endangered Species Act as well as the multi

- national Migratory Bird Treaty Act.

Alt hough the petitioner has previously used experimental light

- sport aircraft certificated under § 21.191(i) to facilitate the migration

, it believes it will be in a position to replace its fleet of
these a ircraft with a fleet of s pecial l ight

- s port a ircraft prior to the commencement of the field season beginning near the fall of 2014. Replacement aircraft will consist of North Wing weight

- shift

- control aircraft The petitioner requests that its current exemption to § 91.319(e) remain in effect until it has accepted delivery of at least three of its s pecial l ight

- s port a ircraft

, which is anticipated to be prior to November 1, 2014

.

The petitioner s u mmarizes that its operation provides many benefits to American people:

1. It safeguards a critica lly endangered s pecies

. 2. It fulfills the mandate of the International Whooping Crane Recovery Team

. 3. It fulfills the mandate of the Endangered Species Act

. 4. It promotes the conservation and restoration of wetla nd habitat

. 5. It provides an unpr ecedented education opportunity

. 6. It promotes eco

- tourism in Wisconsin, Florida

, and along the migration route

.

The petitioner also state s the following reasons why granting the exemption would not adversely affect safety, or how the exemption would provide a level of safety at least equa l to that provided by the rule from which it seek s the exemption:

1. Operation Migration pilots are high time pilots who have been flying ultralight vehicles, specifically weight

- shift

- c ontrol aircraft, for many years

. 2. All Operation Migration pilots current ly hold private pilot certificates

. 3. Operation Migration pilots complete an extensive training program that is designed to safely and specifically allow the whooping crane flock to migrate from Wisconsin to
Florida

. 4. To keep the birds wild and away from peop le, the Operation Migration route was specifically designed through airspace that is away from airports and over open rural

areas. Landing sites are mostly on private property in isolated farm fields

. 5. Because the birds learn to soar on the vortices create d by the aircraft’s wingtip, Operation Migration pilots will fly only in calm, cold air at sunrise. Conditions must be perfect in order for the birds to follow the pilots

, so Operation Migration pilots do not fly in adverse con ditions or marginal VFR weath er

. 6. Operation Migration recruits the services of volunteer pilots to fly top

- cover. These pilots fly circles 1000 feet above and one quarter mile out to help monitor the birds, communicate with ATC using flight following

, and to check weather conditions ah ead

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7. In order to fly slowly enough for the birds (38 to 40 MPH) Operation Migration
aircraft are very light and therefore able to glide long distance and safely land in small

areas

. 8. Operation Migration airc raft are inspected annually

. 9. Operation Migration a ircraft are hangared a nd maintained to high standards

. 10. Engines are opened for inspection before reaching 400 hours and replaced or professi onally rebuilt before 600 hours

. 11. In leading birds for thirteen years, Operation Migration has never experienced an

a ccident involving an aircraft

. 12. This exemption is for the limited purpose of Operation Migration and will not have a
far reaching impact outside of Operation Migration.

A summary of the petition was published in the Federal Register on February 25, 2014 ( 7 9 FR 10600 ). One comment w as received from Mr. Chris Gullikson

. Mr. Gullikson state d
that he was reluctantly in support of this exemption even though he believes the petitioner’s involvement has declined and the project has not had much success. He beli eve s there i s no benefit permitting the carriage of persons under the provisions of the exemption and that such
action would reduce the safe operating envelope of the aircraft used . He also expressed

c oncern that the FAA would require Operation Migration t o use s pecial l ight

- s port a ircraft (S

LSA ) noting that the use of experimental light

- sport aircraft ( E

- LSA ) ha s proven to be safe
and efficient. He also state d that the Rotax 503 engine used in new S

- LSA does not meet American Society fo r Testing and Mate rials (ASTM) standards. A dditional l y, he expressed concern that Operation Migration was not operating in the public interest, as other methods of accomplishing O perating M igration ’s mission are available

.

In response to the commenter’s concerns regardi ng the carriage of passengers, t he FAA believes that p lacing a restriction on a second occupant could hamper Operation Migration ’ s mission . Potentially, such a restriction could keep personnel such as biologist s and wildlife specialist s from conducting re search and gathering data. The FAA disagrees with the
commenter’s contention that safety would be compromised by allowing a second occupant in
the aircraft since it has set forth co nditions and limitations in this document that must be complied with by th e petitioner to ensure no adverse affect upon that person’s safety

. Accordingly, t he FAA will not impose a condition in th is exemption that would limit aircraft operation s to a single occupant

.

The FAA notes that S

- LSA are built and maintained to an FA A accepted standard whereas E

LSA are not built or maintained to any standard. Although the FAA will require the petitioner
to use S

- LSA, the FAA will allow the temporary use of the E

- LSA through the end of the 2014 migration . The FAA is permitting the te mporary use of these aircraft because of the petitioner’s inability to obtain delivery of S

- LSA prior to November 2014

. The FAA does not
concur with the commenter ’s concerns regarding the Rotax 503. The FAA finds the Rotax5

503 would meet ASTM standard F

- 2317 in accordance with section 7.6 Powerplant Requirements

, subsections 7.6.2 and 7.6.3

Finally , in the previous grant of exemption to the petitioner (Exemption No. 10429) , the FAA
made a determination that Operation Migration ’s mission did fill a publi c interest role and continues to believe that granting the exemption is in the public interest for the reasons set forth in both that exemption and this document

.

The FAA’ s analysis is as follows:
The FAA has fully considered the petitioner’s request and supporting information and finds that the continued conduct of operations by the petitioner to facilitate the aerial migration of endangered whooping cranes is in the public interest.

The relief required by the petitioner’s pilots to conduct migration an d imprint flights while holding private pilot certificates with a weight

- shift

- control aircraft rating requires relief from § 61.113(a). In the FAA’s analysis to Exemption No. 10429 , the agency noted that when it
issued the final rule “Certification of Ai rcraft and Airmen for the Operation of Light

- Sport Aircraft” (69 FR 44772) it created a new set of regulations that permit ted persons possessing the training and experience of a sport pilot to operate light

- sport aircraft for sport and
recreation. The rul e was not intended to facilitate operations of these aircraft for compensation or hire, especially since it neither created a commercial pilot certificate with ratings for powered parachutes and weight

- shift

- control aircraft nor established airworthiness

s tandards

, which would lead to the issuance of standard airworthiness certificates for powered parachutes and weight

- shift

- control aircraft. Although the FAA did recognize a need to allow an operator to receive compensat ion for limited types of operations, the rule did not contemplate the use of weight

- shift

- control aircraft to engage in the operations conducted by the petitioner.

The FAA notes that Operation Migration’s pilots currently possess a private pilot certificate with a weight

- shift

- control airc raft rating and that under the regulations the petitioner’s proposed operations for compensation may only be conducted by a person holding at least a commercial pilot certificate. However, the FAA does not issue a commercial pilot certificate with a weigh t

- shift

- control aircraft rating. Accordingly , t o ensure that an appropriate level of safety can be maintained for the conduct of the petitioner’s operations, t he FAA will require the petitioner’s flights to be conducted by pilots holding at least a privat e pilot certificate with a weight

- shift

- control aircraft rating and at least 250 hours as pilot in command in weight

shift

- control aircraft. This level of pilot in command experience in a specific category of aircraft equals that typically required for co mmercial pilots in other categories of aircraft.

Although the petitioner d id not discuss the use of the Cosmos Phase II E

- LSA in its current petition, the FAA understands that the petitioner continue s to utilize the se aircraft under the provisions of E xe mption No. 10429 and seeks to continue their use to conduct its operations

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These aircraft have neither been certificated to the airworthiness standards set forth in 14 CFR for standard category aircraft nor to consensus standards that have been accepted by the FAA
for the certification of S

- LSA s under § 21.190

.

Additionally

, the FAA notes that although there is no standard category weight

- shift

- control aircraft that can be used for compensation or hire , w eight

- shift

- control aircraft currently exist
that have been certificated as S

- LSA in accordance with consensus standards accepted by the
FAA . T he petitioner has indicated that it is attempting to acquire the North Wing X2 S

- LSA to replace its Cosmos Phase II E

- LSAs and that such aircraft should become a vailable by
November 2014.

The FAA recognizes that t he petitioner’s Cosmos Phase II E

- LSA has been safely used to conduct flights under Exemption No. 10429

. B oth that aircraft and the North Wing X2 S

LSA weight

- shift

- control aircraft have an operating en velope that meet s the needs of the petitioner. In view of the unique nature of the petitioner’s operations and the lack of standard category weight

- shift control aircraft , the FAA believes that a continuance of the petitioner’s operations using E

- LSA s and S

- LSAs is in the public interest . Accordingly

, it has imposed conditions and limitations affecting the maintenance and inspection of the se aircraft that it believes will permit the petitioner’s unique operations to be conducted without adversely affecting safety.

The FAA’s Decision
In consideration of the foregoing, I find that a grant of exemption is in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113 and 44701, delegated to me by the Administrator, Operation Migration is granted an exemption from
14 CFR § § 61.113(a), 91.319(e)

, and 91.327(a) to the extent necessary to allow Operation Migration to use persons holding a private pilot certificate to operate weight

- shift

- control
aircraft certificated und er § 21.191(i) or § 21.190 for compensation or hire to facilitate the migration of endangered whooping cranes , subject to the conditions and limitations listed
below.

Conditions and Limitations

1. The relief provided by this exemption is limited to operation s conducted by the following pilots:

Joseph William Duff, Pilot Certificate No. 3468095 John Brooke Pennypacker, Pilot Certificate No. 3344959 Richard Grant Van

- Heuvelen, Pilot Certificate No. 3447150

2. Pilots conducting operations subject to this e xemption must have at least 250 hours as pilot in command in weight

- shift

- control aircraft.7

3. Pilots conducting imprint flights , migrati o n flights

, and any subsequent flights subject to this exemption must hold at least a private pilot certificate with a w eight

shift

- control

- aircraft land rating.

4. Operations subject to this exemption must be conducted in the Cosmos Phase II weight

- shift

- control aircraft with registration numbers N2613T

, N2614T, N2615T and N2616T or North Wing Sport X2 weight

- shift

- control aircraft with registration
numbers N234NW, N456NW, N567NW. The Cosmos Phase II weight

- shift control aircraft may not be used after December 31, 2014.

5. Within the last 100 hours of time

- in

- service

, aircraft used to conduct operations under this exemption m ust have had a condition inspection performed in accordance with the scope and detail of 14 CFR part 43, A ppendix D, or other
FAA

- approved program, and have been found to be in a condition for safe operation. This inspection must be performed by an appropr iately rated mechanic
and be recorded in the aircraft ’s maintenance records.

6. Prior to the use of any aircraft specified in this exemption to conduct a migration flight it must be inspected by an FAA Aviation Safety Inspector/Airworthiness (ASI/AW) from t he Light Sport Aviation Branch (AFS

- 610). This inspection must
be recorded in the aircraft ’s maintenance records.

7. Imprint flights must be conducted within an imprint area coordinated with

, and approved by

, the geographically responsible FSDO located in M ilwaukee, WI.

8. Migration flights must be conducted along a route which has been approved by the Light Sport Aviation Branch (AFS

- 610). The route of flight must be described by distance, radius, coordinates, or appropriate landmarks. The designated route m ust be over other than densely populated areas.

9. Operations are limited to day VFR conditions.

10. A copy of this exemption must be carried onboard each aircraft used to conduct operations subject to the provisions of this exemption when such operations are
conducted.

This exemption terminates on April 30, 2016 , unless sooner superseded or rescinded.

Issued in Washington, D

. C

. , on 04/30/2014

.

/s/ John S. Duncan Director, Flight Standards Service8

Project No.: A FS

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Project Officer: _____________

__ ARM

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ARM

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MR CHARLES R BARNETT III COUNSEL FOR OPERATION MIGRATION INC OPERATION MIGRATION 800 WAUKEGAN ROAD SUITE 200 GLENVIEW IL 60025